Legal Issues

Are you being Blackmailed, harassed or threatened with violence because you are
Lesbian or Gay? Are you being arrested just because you are Gay or Lesbian?

Learn more about the position of Gay Rights in India.
Read On!

Most of the time, a Gays and Lesbians end up being harassed, (mentally or physically) and at times even arrested under irrelevant laws. At other times, one continues to bear the torment and
harassment, just because he or she is unaware of the laws, or has not fully understood the law. It is best to be armed with an understanding of position of Gay rights in India.

"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years and shall also be liable for a term which may extend to 10 years and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section"

Under this Section:

The act of sodomy, and not homosexuality per se is a cognizable offense. That is, evidence of anal penetration has to be proved.

There is no distinction between coercive sex and consensual sex.

Cases against lesbian women under section 377 have not been known to have been registered. This is probably due to the "anal penetration requirement". However, against "the order of nature" has been loosely interpreted, and Section 377 has been used by families and police for intimidation and harassment of lesbian women.

It is illegal to blackmail someone using section 377 as a threat under the following sections:

Extortion - Section 389.

"Whoever, in order to commit extortion, puts or attempts to put any person in fear of an accusation, against that person, or to any other, of having committed or attempted to commit an offense punishable with death or imprisonment for life, or with imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description, for a term which may extend to ten years, and shall also be liable to fine; and, if the offense is punishable under section 377 of this code, maybe punished with imprisonment for life."

Protection in the Criminal Code against Wrongful Restraint, Confinement and Assault.

Wrongful Restraint - Section 341

"Whoever wrongfully restrains any person, shall be punished with simple imprisonment for a term which may extend upto one month or with fine which may extend to five hundred rupees or with both".

Wrongful Confinement - Section 342

"Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend upto one year or with fine which may extend to one thousand rupees, or with both.

Assault - Section 351

"Whoever makes any gesture, or preparation intending or knowing it to be likely that such a gesture, or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit as assault". Assault is punishable by imprisonment and/or fine.

In India, homosexuality has traditionally been tolerated, even celebrated, although the Manu Smriti pronounces severe punishments for male as well as female homosexuality. The Kamasutra contains an entire chapter entitled "Auparishtaka" (oral congress) and Vatsayana, the author insists that the practice is permitted by the orders of the holy writ (Dharma Shashtra) with just a few exceptions. One of the forms in which Shiva is worshipped is Ardhanarishwara, containing both the female and male energies.

Alan Danielou in his book, "Shiva and Dionysius". examines the tantric rite of anal penetration and goes on to state "the hermaphrodite, the homosexual and the transvestite have a symbolic value and are considered privileged beings, images of Ardhanarishwara".

The British obviously found the practice unchristian and abhorrent and in 1860, enacted the Indian Penal Code which in Section 377 states:

"Unnatural offenses - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall be liable to fine.

Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section".

The exact scope of this vague definition - "carnal intercourse against the order of nature" - has been a major subject of debate in the existing case law. It has generally been interpreted to include acts of anal sex (coitus per annum) as well as oral sex (coitus per os) between males. The possibility of this definition being extended to heterosexual acts of anal or oral sex also exists, but has not been tested. Consent of the other party is completely irrelevant for conviction, but it may be a relevant consideration while fixing the quantum of punishment.

It must be pointed out that homosexuality per se is not an offense and an "act" of unnatural intercourse has to be proved.

The petiiton has been drafted by Lawyers Collective HIV/AIDS Unit on
behalf of Naz Foundation India (a Delhi-based NGO)."

The fact is arguments in the case have not yet begun, even a year after
the case has been filed. Only 2 things of some significance have happened
'on the record' -

The Union government has been directed by the High Court to file its reply
to the petition, which the government has not yet done. On the last
occasion when the case came up i.e. 27 November 2002, the Additional
Solicitor General representing the government informed the court that the
government had sought the Attorney General's opinion in the case, which is
awaited. The court noticed (a 2-judge bench) that the case should not be
coming up before them (due to them being assigned a different set of cases
to be heard) and that it should go to the Chief Justice of the High Court
who would decide the judges to be assigned this case. This was supposed to
happen on 10 December but did not since the Chief Justice did not sit that
day. We now expect the case to come up after the court's winter break i.e.
sometime in January 2003 although the exact date is not known.

At an earlier stage of the case (approx. April 2002) an organisation known
as JACK (Joint Action Council Kannur) sought to file their own case in the
court which argued that our petition was not sustainable before the Delhi
High Court on various grounds including the argument that HIV/AIDS does
not exist (one of the grounds our petition seeks decriminalisation of
sodomy since its continued criminalisation impedes the health of MSM by
pushing the behaviour underground and making it impossible for effective
HIV/AIDS interventions). The court rejected JACK's petition but permitted
JACK to intervene in our case (i.e. they are now made a party in our case
and their point of view will be heard and considered by the court).

Below is a brief summary of the petition and the language contained in
Section 377 of the Indian Penal Code.

Section 377 of the IPC states: "Unnatural Offences, - Whoever voluntarily has carnal
intercourse against the order of nature, with any man, woman or animal,
shall be punished with imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years, and shall
also be liable to fine.

Explanation, - Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section.

The section is a vestige of the British, criminalises acts of oral and
anal sex committed either between a man and a man, a man and a woman or a
man and an animal. Substantively the law applies equally to homosexuals
and heterosexuals and does not differentiate between consensual and
coercive sexual activities. Although Sec.377 does not criminalise
homosexuality, it is mostly used as a tool to harass and abuse sexual
minorities.

The writ petition filed in the Delhi High Court, challenges the
constitutional validity of this section on grounds, inter alia, that:

It violates the fundamental rights to privacy and equality of sexual
minorities, guaranteed to every citizen of India under the Constitution.

It is a major impediment to carry out HIV/AIDS intervention work with the
MSM community as it drives high risk behaviour in terms of unprotected
anal and oral intercourse underground and beyond the reach of safe sex
interventions.

The petition seeks a 'reading down' of
Sec. 377 (i.e. the section should be
interpreted to cover only non-consensual sexual activities, thus excluding
consensual sexual activities between adults).

The petition also seeks
interim relief that pending final hearing and disposal, the Delhi police
will stay the implementation of Sec. 377.